In Biden v. Nebraska, the decision in which the Court invalidated the Biden administration’s student loan forgiveness program, Justice Barrett wrote a theoretically ambitious concurrence, joined however by no other Justice. The aim of the concurrence was to put the so-called major questions doctrine on a more secure basis by justifying it as a natural inference from “common sense” and “context,” rather than as a substantive canon of interpretation. Whatever the merits of the major questions doctrine, my point here is a theoretical and analytical one about the structure of the distinctions that Justice Barrett attempts to erect. I do not think that structure can stand; indeed I think her own examples show it to be divided against itself. Justice Barrett’s account of “context” is so broad as to easily encompass the substantive principles and maxims that she sees as problematic for the textualist judge, thereby collapsing into an approach that Barrett sees as non-textualist, contrary to her commitments. Yet any narrower account of context would be untenable. The upshot is that the appeal to context merely displaces and postpones, rather than resolving, the question which background principles of the legal order the judge may properly take on board.

The foundation-stone of the concurrence is a distinction between two types of principles or maxims that judges might bring to bear when interpreting statutes. The first type are so-called “substantive canons,” which the concurrence describes as “rules of construction that advance values external to a statute.” Of these, some are weak tiebreakers, while some take a stronger form, often called clear statement rules, which “counsel[] a court to strain statutory text to advance a particular value” (emphasis in original). At least in their stronger forms, such canons, Barrett says, “are in significant tension with textualism insofar as they instruct a court to adopt something other than the statute’s most natural meaning” (internal quotation omitted), and might even transgress the limits of federal judicial power under Article III. Barrett gives as examples of strong-form substantive canons “constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity.”

The second type of maxim, on Barrett’s view, is very different. It falls out of the sensible, even banal principle that statutes should be read in textual context. “To strip a word from its context,” Barrett observes, “is to strip that word of its meaning.” And she adds, with striking optimism, that “[c]ontext also includes common sense, which is another thing that goes without saying” (internal quotation omitted). Barrett later argues that the major questions doctrine can be justified in these terms, an issue that, to repeat, I will bracket and leave for another day.

Things immediately become confusing, however, when Barrett says that “context is not found exclusively within the four corners of a statute.” Recall that the “substantive” principles were defined as “rules of construction that advance values external to a statute.” If the latter are in tension with texualism and indeed the limits of judicial power because they are “external,” why is context that is equally extrinsic to the four corners of a statute not also in tension with textualism and the limits of judicial power? The puzzle deepens when it becomes clear that, on Barrett’s view (drawing upon academic work by leading textualists), “context” includes not only “linguistic context” but “historical and governmental context” and “background legal conventions.” Along these lines, the list of maxims of contextual inference that Barrett gives includes (1) the presumption of mens rea for criminal statutes, (2) a presumption of equitable tolling for statutes of limitations, (3) legal terms of art, (4) implied requirements of proximate causation for statutory causes of action, and (5) venerable legal principles such as de minimis non curat lex. 

The problem should be apparent. The very maxims that Justice Barrett wants to describe as common-sensical “historical and governmental context” or “background legal conventions” are indistinguishable from the ones she wants to describe as problematic substantive “values external to the statute.” Barrett, for example, puts the presumption against retroactivity into a fundamentally different category than the presumption of equitable tolling — the former is deemed substantive and external, the latter merely contextual — but this is untenable. The two are, at bottom, exactly the same sort of legal principle, and in both cases may equally be seen either as part of “context” or, alternatively, as promoting basic values of the legal order — or indeed may properly be seen as both. The presumption against retroactivity is “historical and governmental context,” a “background legal convention,” as old as Western law itself; a version of it is embodied in a constitution (i.e., an imperial pronouncement) of the Emperors Theodosius and Valentinian, and other versions appear in countless European, English and American decisions, treatises and enactments. This sheer antiquity and ubiquity is doubtless why, in Bowen v. Georgetown University Hospital, Justice Kennedy writing for the Court observed blandly that “retroactivity is disfavored in the law,” without offering any citation to any positive enactment. Conversely, the paradigm case of equitable tolling arises when the court extends the running of the limitations period because one party has deceived or tricked another into filing suit too late. But this equitable intervention, based on the ancient principle that dolus malus or willful bad faith must not be rewarded, could easily be described, using Barrett’s categories, as a values-based principle “external” to the statute’s linguistic meaning; after all, if there is any candidate for a text that simply says what it says, it is a statute of limitations. It is obviously no answer to say that the statute of limitations was enacted against the backdrop of the principle of equitable tolling, so that the latter is deemed to be built into the ordinary meaning understood by both lawmakers and litigants. Exactly the same argument would justify including the time-honored presumption against retroactivity as part of contextual ordinary meaning, yet Barrett describes the latter as external and substantive.

So the principles that Barrett puts into one category straightforwardly fall into the other as well. It is not just that we have here a case of the ordinary difficulty of drawing lines between categories; it is that Barrett’s two categories do not describe different things. Both the presumption against retroactivity and the presumption of equitable tolling are, equally and simultaneously, both firmly rooted in historical and governmental context as background legal conventions, and also fully substantive and value-laden.

So too, if de minimis non curat lex is part of “historical and governmental context,” a “background legal convention,” why not equally venerable maxims such as cessante ratione legis, cessat et ipsa lex or, roughly equivalently, ratio est legis anima, mutata legis ratione mutaturet lex? After all, the latter maxim was described by none other than Justice Antonin Scalia as firmly among the traditional tools of statutory construction. The problem, of course, is that those maxims embed within context and convention the very purposivism that Barrett otherwise wants to stamp as unacceptable for the textualist. From the beginning, across the millennia of western legal history and for centuries within American law, the “background conventions” of our legal tradition have included interpretive tools and modalities that the ideological versions of textualism current in the past decade or so reject. This rich tradition, too, is “historical and governmental context.” The awkward fact for the textualist is that the historical context and background conventions of American law have not themselves been textualist, by and large, at least not in anything like the recent sense.

It seems, then, that Barrett faces a dilemma. Either the notion of “context” is so capacious as to include the very same substantive canons, principles and maxims that Barrett would hive off as “external to the statute” and hence problematic, or else she would have to try to identify a subcategory of strictly linguistic context, shorn of the rich historical and governmental background of the legal order. (And indeed Barrett says in one footnote, in direct tension with her main argument about “background legal conventions” and “historical and governmental context,” that the antonym of substantive canons are “linguistic or descriptive canons, which are designed to reflect grammatical rules…or speech patterns”). But it is hard even to imagine what the latter approach would even mean or how it would work; there is no “linguistic context” independent of the legal history and institutional situation within which lawyers use legal language. When practicing lawyers and judges read words, they inevitably and properly read them against the backdrop not only of other provisions and statutes, but also background conventions, precedents and rational principles of the legal order, firmly embedded within our history and traditions — a source of legal meaning that Justice Barrett has seen as entirely unproblematic in other contexts. Of course, judges might see fit, for pragmatic and prudential reasons, to exclude certain sources of meaning (one may not, for example, put legislators on the stand to ask about their understandings of statutory terms), but when judges do so it is not because such sources are “external to the statute” or “beyond its four corners”; all the sources of context of which Barrett approves share that feature. 

One understands, of course, the appeal to the textualist judge of the formula of “linguistic, historical and governmental context.” It allows the textualist to enrich her approach to interpretation with an array of background principles while maintaining the sense that what she is doing is all, ultimately, still just textualism. And indeed, such a description is not exactly wrong; as I have argued, those background principles are indeed part of the full context of our law. When a textualist such as Barrett points to the famous statute of Bologna that forbade “drawing blood in the streets,” and then says that “context” and “common sense” rather than legislative purpose explain why the statute is properly deemed not to cover a surgeon who draws blood in a medical emergency, it seems obvious that the two formulations are operationally equivalent, and that “common sense” is here being used to import an implicit intuitive sense of what a reasonable lawmaker would want in a non-standard case. In this sense, the stakes of the debate over “context” are low — or would be, except that the ideological textualist mistakenly takes the formula of “context” as a license to arbitrarily exclude, or at least to stamp as problematic, some important set of background principles of the legal order that are in fact just as firmly a part of the historical and governmental context as the principles to which she appeals.

As for my own view, rooted in the classical legal tradition, I have laid it out elsewhere. Statutes and statutory text are emphatically to be respected; ordinarily, applying statutes straightforwardly just is the doing of legal justice. Yet rational background principles of legal justice, rooted in history and tradition, are themselves part of what statutes are legally deemed to “mean,” not only or not primarily because legislators in fact enacted statutes with knowledge that the judges would apply such principles, but because respect for the nature and legitimacy of the legislative office, and indeed for the nature of law as a reasoned ordinance in the public interest, require that judges apply such principles when reading statutes — deploying them as, if you like, a type of benign and normatively inspired fiction. Legislative power comes with background norms of legal justice built into the office and its lawful exercise, which is why classical American judges — meaning American judges throughout most of our history — would read legal meaning to include those norms, and would if necessary distinguish “the letter of the statute” from “the statute itself,” a locution that sounds bizarre to the ideological textualist. Disagreements may of course be had, and should be had, about what exactly the background principles of legal justice are, about their scope and weight, and how they are to be identified. But disagreements are endemic to all interpretive approaches in the types of cases that reach apex appellate courts, emphatically including Barrett’s approach. (It is remarkably ambitious that Justice Barrett hopes to root the major questions doctrine in “common sense,” given that the doctrine has been advanced in a series of sharply contested 5-4 and 6-3 decisions. Do the Justices in dissent simply lack common sense, in Barrett’s view?)

My only claim is that such disagreements must be resolved on different grounds, with different categories, than the ones Justice Barrett advances. On the classical view, at least, there is no need to attempt untenable distinctions between context and background conventions on the one hand, and substantive values on the other; background principles of legal justice are themselves, always, part of the “context” within which law operates as law. Whatever the overall merits of that view, it has the merit of avoiding an arbitrary categorization-game, in which methodologically equivalent background principles are shuffled into or out of “context,” in mysterious ways and on inconsistent, conceptually untenable grounds.

Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.